SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
________________
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 2
________________
ALBERTSON'S, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 82-0184434
(State of Incorporation (I.R.S. Employer
or Organization) Identification no.)
250 PARKCENTER BOULEVARD
BOISE, IDAHO
(Address of Principal Executive Offices)
83726
(Zip Code)
________________
Securities to be registered pursuant to Section 12(b) of the Act:
Name of Each Exchange
Title of Each Class on Which Each Class is
to be so Registered to be Registered
------------------- ----------------------
PREFERRED STOCK PURCHASE RIGHTS NEW YORK STOCK EXCHANGE
PACIFIC STOCK EXCHANGE
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
The undersigned registrant hereby amends and supplements, as set
forth below, Items 1 and 2 of its Registration Statement on Form 8-A (the
"Form 8-A") filed with the Securities and Exchange Commission (the
"Commission") on March 4, 1997, as amended by Amendment No. 1 thereto,
filed with the Commission on August 6, 1998.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The response to Item 1 in the Form 8-A is hereby amended to read
in its entirety as follows:
The Board of Directors of Albertson's, Inc. (the "Company") has
adopted a Stockholder Rights Plan providing that one right (a "Right") will
be attached to each share of common stock, par value $1.00 per share, of
the Company (the "Common Stock"). The Rights were issued initially to
holders of record of the Common Stock on March 21, 1997 (the "Record
Date"). Each Right entitles the registered holder to purchase from the
Company one one-thousandth of a share of Series A Junior Participating
Preferred Stock, par value $1.00 per share, of the Company (the "Preferred
Stock") at a purchase price of $160 (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in a
Rights Agreement, dated as of December 9, 1996 and amended on August 2,
1998 and March 16, 1999 (the "Rights Agreement"), between the Company and
ChaseMellon Shareholder Services, L.L.C., as rights agent.
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate
certificates in respect of the Rights ("Rights Certificates") will be
distributed. All certificates representing shares of Common Stock issued
by the Company following the Record Date bear a legend indicating that the
Rights are attached to such Common Stock certificates. Shares issued and
owned by stockholders prior to the Record Date will be deemed to have
Rights attached, notwithstanding the absence of a legend. The Rights will
separate from the Common Stock and a Distribution Date will occur upon the
earlier of (i) 10 days following a public announcement that a person or
group of affiliated or associated persons (an "Acquiring Person") has
acquired, or obtained the right to acquire, beneficial ownership of 15% or
more of the outstanding shares of Common Stock (the "Stock Acquisition
Date"), or (ii) 10 business days (or such later date as may be determined
by the Board of Directors) following the commencement of a tender offer or
exchange offer that would result in a person or group beneficially owning
15% or more of the outstanding shares of Common Stock (the earlier of (i)
and (ii), the "Distribution Date"). Until the Distribution Date, (i) the
Rights will be evidenced by the Common Stock certificates and will be
transferred with and only with such certificates, (ii) new Common Stock
certificates will contain a notation incorporating the Rights Agreement by
reference and (iii) the surrender for transfer of any certificates for
Common Stock outstanding will also constitute the transfer of the Rights
associated with the Common Stock represented by such certificates.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on March 21, 2007 unless earlier redeemed
or extended by the Company.
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of the Common Stock as of
the close of business on the Distribution Date and, thereafter, the
separate Rights Certificates alone will represent the Rights. Except as
otherwise determined by the Board of Directors, only shares of Common Stock
issued prior to the Distribution Date will be issued with Rights.
In the event that any person becomes an Acquiring Person (except
pursuant to an offer for all outstanding shares of Common Stock that the
independent directors determine to be fair to and otherwise in the best
interests of the Company and its stockholders), each holder of a Right will
thereafter have the right to receive, upon exercise, Common Stock (or, in
certain circumstances, cash, property or other securities of the Company)
having a value equal to two times the Purchase Price. Notwithstanding the
foregoing, following the occurrence of an event set forth in this paragraph
(the "Flip-in Event"), all Rights that are, or (under certain circumstances
specified in the Rights Agreement) were, beneficially owned by any
Acquiring Person will be null and void. However, Rights are not
exercisable following the occurrence of a Flip-in Event until such time as
the Rights are no longer redeemable by the Company, as set forth below.
In the event that following the Stock Acquisition Date, (i) the
Company engages in a merger or business combination transaction in which
the Company is not the surviving corporation; (ii) the Company engages in a
merger or business combination transaction in which the Company is the
surviving corporation and the Common Stock of the Company is changed or
exchanged; or (iii) 50% or more of the Company's assets or earning power is
sold or transferred, each holder of a Right (except Rights which have
previously been voided as set forth above) will thereafter have the right
to receive, upon exercise of the Right, Common Stock of the acquiring
company having a value equal to two times the Purchase Price.
The Purchase Price payable, and the number of one one-thousandths of a
share of Preferred Stock or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from time to time to
prevent dilution (i) in the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Preferred Stock, (ii) if holders of
the Preferred Stock are granted certain rights or warrants to subscribe for
Preferred Stock or convertible securities at less than the Current Market
Price (as defined in the Rights Agreement) of the Preferred Stock, or (iii)
upon the distribution to holders of the Preferred Stock of evidences of
indebtedness or assets (excluding regular quarterly cash dividends) or of
subscription rights or warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional Rights will be issued and, in lieu thereof, an
adjustment in cash will be made based on the market price of the Preferred
Stock on the last trading date prior to the date of exercise.
Generally, at any time until ten days following the Stock Acquisition
Date, the Company may redeem the Rights in whole, but not in part, at a
price of $.001 per Right (the "Redemption Price"). Immediately upon the
action of the Board of Directors ordering redemption of the Rights, the
Rights will terminate and the only right of the holders of Rights will be
to receive the Redemption Price. Notwithstanding the foregoing, the Rights
generally may not be redeemed for 180 days following a change in a majority
of the Board of Directors as a result of a proxy contest or consent
solicitation unless the Board of Directors adopts specified Value
Enhancement Procedures (as defined in the Rights Agreement) or the Board of
Directors (i) is able to establish the entire fairness of the decision to
redeem the Rights if an action challenging such decision is brought and
(ii) satisfies certain other requirements.
For 180 days (the "Special Period") following a change in control of
the Board of Directors of the Company, that has not been approved by the
Board of Directors, occurring within six months of announcement of an
unsolicited third-party acquisition or business combination proposal or of
a third party's intent or proposal otherwise to become an Acquiring Person,
the new directors are entitled to redeem the Rights (assuming the Rights
would have otherwise been redeemable), including to facilitate an
acquisition or business combination transaction involving the Company, but
only (i) if they have followed certain prescribed procedures or (ii) if
such procedures are not followed, and if their decision regarding
redemption and any acquisition or business combination is challenged as a
breach of fiduciary duty of care or loyalty, the directors (solely for
purposes of the effectiveness of the redemption decision) are able to
establish the entire fairness of the redemption or transaction.
Any of the provisions of the Rights Agreement may be amended by the
Board of Directors prior to the Distribution Date. The foregoing
notwithstanding, no amendment may be made to the Rights Agreement during
the Special Period or at a time when the Rights are not redeemable, except
to cure any ambiguity or correct or supplement any provision contained in
the Rights Agreement which may be defective or inconsistent with any other
provision therein.
As of January 28, 1999, there were 245,697,363 shares of Common Stock
outstanding and no shares of Common Stock in the treasury. As of January
28, 1999, options to purchase 4,543,100 shares of Common Stock were
outstanding. So long as the Rights are attached to the Common Stock, one
Right (as such number may be adjusted pursuant to the provisions of the
Rights Agreement) will be deemed to be delivered for each share of Common
Stock issued or transferred by the Company in the future. In addition,
following the Distribution Date and prior to the expiration or redemption
of the Rights, the Company may issue Rights when it issues Common Stock
only if the Board of Directors deems it to be necessary or appropriate, or
in connection with the issuance of shares of Common Stock pursuant to the
exercise of stock options or under employee plans or upon the exercise,
conversion or exchange of certain securities of the Company. A total of
3,000,000 shares of Preferred Stock are reserved for issuance upon exercise
of the Rights.
The Rights may have certain anti-takeover effects. The Rights will
cause substantial dilution to a person or group that attempts to acquire
the Company in a manner which causes the Rights to become discount Rights
unless the offer is conditional on a substantial number of Rights being
acquired. The Rights, however, should not affect any prospective offeror
willing to make an offer at a fair price and otherwise in the best
interests of the Company and its stockholders, as determined by a majority
of members of the Board of Directors who are not affiliated with the person
making the offer. The Rights should not interfere with any merger or other
business combination approved by the Board of Directors since the Board
may, at its option, at any time until ten days following the Stock
Acquisition Date redeem all, but not less than all, of the then outstanding
Rights at the Redemption Price.
On August 2, 1998, the Company issued an option (the "Option") to
purchase shares of Common Stock to American Stores Company, a Delaware
corporation ("ASC"). On August 2, 1998, the Company executed an amendment
(the "Amendment") to the Rights Agreement as originally executed that
provides that ASC will not be deemed to be the "Beneficial Owner" or to
"beneficially own" the shares of Common Stock for which the Option is
exercisable and will not be deemed to be an Acquiring Person by reason of
its holding the Option or any shares of Common Stock acquired pursuant to
the exercise of the Option. The Option will expire upon consummation of
the merger of ASC into a subsidiary of the Company and in certain other
circumstances.
The Rights Agreement is attached hereto as an exhibit and is
incorporated herein by reference. The foregoing description of the Rights
is qualified in its entirety by reference to such exhibit. A Certificate
of Designation, Preferences and Rights setting forth the terms of the
Preferred Stock was filed with the Secretary of State of the State of
Delaware (the "Secretary of State") on December 13, 1996, and an amendment
thereto was filed with the Secretary of State on March 16, 1999.
ITEM 2. EXHIBITS.
The response to Item 2 in the Form 8-A is hereby amended to read
in its entirety as follows:
1. Stockholder Rights Agreement, dated as of December 9, 1996,
between Albertson's, Inc. and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent, which includes the
Certificate of Designation, Preferences and Rights of Series
A Junior Participating Preferred Stock as Exhibit A, the
Form of Rights Certificate as Exhibit B and the Summary of
Rights to Purchase Preferred Stock as Exhibit C.
2. Amendment to Stockholder Rights Agreement, dated as of
August 2, 1998.
3. Second Amendment to Rights Agreement between Albertson's,
Inc. and ChaseMellon Shareholder Services, L.L.C., dated as
of March 16, 1999.
4. Amendment to Certificate of Designation, Preferences and
Rights of Series A Junior Participating Stock of
Albertson's, Inc.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
ALBERTSON'S, INC.
By /s/ Thomas R. Saldin
--------------------------------------
Name: Thomas R. Saldin
Title: Executive Vice President and
General Counsel
Date: March 24, 1999
EXHIBIT INDEX
Exhibit Description
------- -----------
1* Stockholder Rights Agreement, dated as of December 9, 1996,
between Albertson's, Inc. and ChaseMellon Shareholder Services,
L.L.C., as Rights Agent, which includes the Certificate of
Designation, Preferences and Rights of Series A Junior
Participating Preferred Stock as Exhibit A, the Form of Rights
Certificate as Exhibit B and the Summary of Rights to Purchase
Preferred Stock as Exhibit C.
2* Amendment to Stockholder Rights Agreement, dated as of August 2,
1998.
3 Second Amendment to Rights Agreement between Albertson's, Inc.
and ChaseMellon Shareholder Services, L.L.C., dated as of
March 16, 1999.
4 Amendment to Certificate of Designation, Preferences and Rights
of Series A Junior Participating Stock of Albertson's, Inc.
_________________
* Incorporated by reference to the Registration Statement on Form 8-A
filed by Albertson's, Inc. with the Commission on March 4, 1997, as
amended (File No. 1-06187).
EXHIBIT 3
SECOND AMENDMENT TO RIGHTS AGREEMENT
BETWEEN
ALBERTSON'S, INC.
AND
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
This agreement, made this 16th day of March, 1999 between
Albertson's, Inc. ("Albertson's") and ChaseMellon Shareholder Services,
L.L.C., ("CMSS") amends the Rights Agreement dated as of December 9, 1996
between Albertson's and CMSS (the "Rights Agreement") as heretofore
amended.
WHEREAS, Section 9(a) of the Rights Agreement requires that a
number of shares of Series A Junior Participating Preferred Stock, par
value $1.00 per share, of the Company (the "Preferred Stock"), be available
for issuance sufficient to permit the exercise in full of all outstanding
Rights (as defined in the Rights Agreement);
WHEREAS, the Board of Directors of the Company has authorized
this amendment of the Rights Agreement to reduce the exercise rights of the
holders of Rights with respect to the purchase of shares of Preferred Stock
by a factor of ten, so as to reduce the number of shares of Preferred Stock
that will be necessary to satisfy the requirements of Section 9(a) by a
factor of ten; and
WHEREAS, simultaneously with this amendment, the Board of
Directors has authorized the amendment of the certificate of incorporation
of the Company to increase the rights and privileges of the holders of
shares of Preferred Stock with respect to dividends and liquidation
preferences by a factor of 10, and
WHEREAS, recent decisions in the Delaware courts require
changes to be made in the Rights Agreement, and
WHEREAS, certain additional changes in the Rights Agreement
would be in the best interest of the shareholders of Albertson's, and
WHEREAS, the Board of Directors of Albertson's believes it is
in the best interests of the shareholders of Albertson's to amend the
Rights Agreement as set forth below, and
WHEREAS, under the present circumstances, Section 27 of the
Rights Agreement permits Albertson's and CMSS to amend the Rights Agreement
if Albertson's so directs, and
WHEREAS, Albertson's has directed CMSS to enter into this
agreement,
NOW THEREFORE, intending to be legally bound, Albertson's and
CMSS hereby agree that the Rights Agreement and the Exhibits thereto shall
be amended as set forth below.
1. Section 1(a) of the Rights Agreement is hereby amended in its
entirety to read as follows:
"Acquiring Person" shall mean (x) any Person who or
which, together with all Affiliates and Associates of such
Person, shall be the Beneficial Owner of 15% or more of the
shares of Common Stock then outstanding, but shall not include
(i) the Company, (ii) any Subsidiary of the Company, (iii) any
employee benefit plan of the Company, or of any Subsidiary of
the Company, (iv) any Person or entity organized, appointed or
established by the Company for or pursuant to the terms of any
such plan, or (v) any Person who becomes the Beneficial Owner
of fifteen percent (15%) or more of the shares of Common Stock
then outstanding as a result of a reduction in the number of
shares of Common Stock outstanding due to the repurchase of
shares of Common Stock by the Company other than during the
Special Period (as defined in Section 23(c) hereof) or at a
time when the rights are not redeemable, unless and until such
Person, after becoming aware that such Person has become the
Beneficial Owner of fifteen percent (15%) or more of the then
outstanding shares of Common Stock, acquires beneficial
ownership of additional shares of Common Stock representing one
percent (1%) or more of the shares of Common Stock then
outstanding, (vi) any such Person who has reported or is
required to report such ownership (but less than 20%) on
Schedule 13G under the Securities and Exchange Act of 1934, as
amended and in effect on the date of the Agreement (the
"Exchange Act") (or any comparable or successor report) or on
Schedule 13D under the Exchange Act (or any comparable or
successor report) which Schedule 13D does not state any
intention to or reserve the right to control or influence the
management or policies of the Company or engage in any of the
actions specified in Item 4 of such schedule (other than the
disposition of the Common Stock) and, within 10 Business Days
of being requested by the Company to advise it regarding the
same, certifies to the Company that such Person acquired shares
of Common Stock in excess of 14.9% inadvertently or without
knowledge of the terms of the Rights and who or which, together
with all Affiliates and Associates of such Person, thereafter
does not acquire additional shares of Common Stock while the
Beneficial Owner of 15% or more of the shares of Common Stock
then outstanding; provided, however, that if the Person
requested to so certify fails to do so within 10 Business Days,
then such Person shall become an Acquiring Person immediately
after such 10-Business-Day period, or (vii) any person who
shall have executed a written agreement with the Company (which
agreement shall have been approved by the Board) prior to the
date on which such Person, together with all Affiliates and
Associates, became the Beneficial Owner of fifteen (15%) or
more of the shares of Common Stock then outstanding and which
agreement imposes one or more limitations (the "Thresholds") on
the number of shares of Common Stock such Person may
beneficially own, but only if and so long as (A) such agreement
continues to be binding on such Person, (B) such Person is in
substantial compliance (as determined by the Board in its
discretion) with the terms of such written agreement, as
amended from time to time, (C) any and all such amendments to
such agreement have been approved by the Board, and (D) no such
amendment, if executed after the Distribution Date, cures, or
has the effect of curing, any prior breach of such agreement or
any amendment thereto, or (y) any Person who or which has
entered into any agreement or arrangement with the Company or
any Subsidiary of the Company providing for an Acquisition
Transaction (as defined in Section 1(b) hereof).
2. The following Section 1(b) is inserted into the Rights Agreement, and
all subsequent subsections of Section 1 are renumbered accordingly,
and all cross-references to such renumbered sections are changed to
refer to such sections as if renumbered:
"Acquisition Transaction" shall mean (x) a merger,
consolidation or similar transaction involving the Company or
any of its Subsidiaries as a result of which stockholders of
the Company will no longer own a majority of the outstanding
shares of Common Stock of the Company or a publicly traded
entity which controls the Company or, if appropriate, the
entity into which the Company may be merged, consolidated or
otherwise combined (based solely on the shares of Common Stock
received or retained by such stockholders, in their capacity as
stockholders of the Company, pursuant to such transaction), (y)
a purchase or other acquisition of all or a substantial portion
of the assets of the Company and its Subsidiaries, or (z) a
purchase or other acquisition of securities representing 15% or
more of the shares of Common Stock then outstanding.
3. Section 1(cc) of the Agreement is hereby amended in its entirety to
read as follows:
"Stock Acquisition Date" shall mean the earlier of (i)
the first date of public announcement (which, for purposes of
this definition, shall include, without limitation, a report
filed or amended pursuant to Section 13(d) under the Exchange
Act) by the Company or an Acquiring Person that an Acquiring
Person has become such pursuant to clause (x) of the definition
of Acquiring Person, and (ii) the date that an Acquiring Person
has become such pursuant to clause (y) of the definition of
Acquiring Person.
4. The first sentence of Section 3(a) of the Agreement is hereby amended
in its entirety to read as follows:
Until the earlier of (i) the close of business on the
tenth day after the Stock Acquisition Date (or, if the tenth
day after the Stock Acquisition Date occurs before the Record
Date, the close of business on the Record Date), or (ii) the
close of business on the tenth day (or such later date as the
Board shall determine, provided, however, that no deferral of a
Distribution Date by the Board pursuant to this clause (ii) may
be made at any time during the Special Period) after the date
that a tender or exchange offer by any Person (other than the
Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, or any
Person or entity organized, appointed or established by the
Company for or pursuant to the terms of any such plan) is first
published or sent or given within the meaning of Rule 14d-2(a)
of the General Rules and Regulations under the Exchange Act, if
upon consummation thereof, such Person would become an
Acquiring Person, (the earlier of (i) and (ii) being herein
referred to as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of paragraphs (b) and (c)
of this Section 3) by the certificates for the Common Stock
registered in the names of the holders of the Common Stock
(which certificates for Common Stock shall be deemed also to be
certificates for Rights) and not by separate certificates, and
(y) the Rights will be transferable only in connection with the
transfer of the underlying shares of Common Stock (including a
transfer to the Company).
5. Section 4(a) of the Rights Agreement is hereby amended such that the
words "one one-hundredths" in the second sentence shall be replaced
with the words "one one-thousandths."
6. Section 4(a) of the Rights Agreement is hereby amended such that the
words "one one-hundredth" in the second sentence shall be replaced
with the words "one one-thousandth."
7. Section 6(a) of the Rights Agreement is hereby amended such that the
words "one one-hundredths" in the first sentence shall be replaced
with the words "one one-thousandths."
8. Section 7(a) of the Rights Agreement is hereby amended such that the
words "one one-hundredths" shall be replaced with the words "one
one-thousandths."
9. Section 7(b) of the Rights Agreement is hereby amended such that the
words "one one-hundredths" shall be replaced with the words "one
one-thousandths."
10. Section 7(c) of the Rights Agreement is hereby amended such that the
words "one one-hundredth" in the first sentence shall be replaced
with the words "one one-thousandth."
11. Section 7(c)(i)(A) of the Rights Agreement is hereby amended such
that the words "one one-hundredths" shall be replaced with the words
"one one-thousandths."
12. Section 7(c)(i)(B) of the Rights Agreement is hereby amended such
that the words "one one-hundredths" shall be replaced with the words
"one one-thousandths."
13. Section 9(d) of the Rights Agreement is hereby amended such that the
words "one one-hundredths" shall be replaced with the words "one
one-thousandths."
14. Section 9(e) of the Rights Agreement is hereby amended such that the
words "one one-hundredths" in the first sentence shall be replaced
with the words "one one-thousandths."
15. Section 9(e) of the Rights Agreement is hereby amended such that the
words "one one-hundredths" in the second sentence shall be replaced
with the words "one one-thousandths" in both locations where such
words are used.
16. Section 10 of the Rights Agreement is hereby amended such that the
words "one one-hundredths" shall be replaced with the words "one
one-thousandths."
17. Section 11(a)(ii) of the Rights Agreement is hereby amended such that
the words "one one-hundredths" shall be replaced with the words "one
one-thousandths" in both locations where such words are used.
18. Section 11(a)(ii) of the Agreement is hereby amended to add the
following after "the best interests of the Company and its
stockholders" and before "then promptly following the occurrence":
(provided, however, that no such determination shall be made during
the Special Period)
19. Section 11(d)(ii) of the Rights Agreement is hereby amended such that
"100" shall be replaced with "1,000."
20. Section 11(e) of the Rights Agreement is hereby amended such that the
words "ten-thousandth" in the second sentence shall be replaced with
the words "hundred-thousandth."
21. Section 11(e) of the Rights Agreement is hereby amended such that the
words "one-millionth " in the second sentence shall be replaced with
the words "ten-millionth."
22. Section 11(g) of the Rights Agreement is hereby amended such that the
words "one one-hundredths" shall be replaced with the words "one
one-thousandths."
23. Section 11(h) of the Rights Agreement is hereby amended such that the
words "one one-hundredths" shall be replaced with the words "one
one-thousandths" in both where such words are used.
24. Section 11(i) of the Rights Agreement is hereby amended such that the
words "one one-hundredths" in the first sentence shall be replaced
with the words "one one-thousandths."
25. Section 11(i) of the Rights Agreement is hereby amended such that the
words "one one-hundredths" in the second sentence shall be replaced
with the words "one one-thousandths."
26. Section 11(i) of the Rights Agreement is hereby amended such that the
words "ten-thousandth" in the third sentence shall be replaced with
the words "hundred-thousandth."
27. Section 11(j) of the Rights Agreement is hereby amended such that the
words "one one-hundredths" shall be replaced with the words "one
one-thousandths" 6in both locations where such words are used.
28. Section 11(j) of the Rights Agreement is hereby amended such that the
words "one one-hundredth" shall be replaced with the words "one
one-thousandth."
29. Section 11(k) of the Rights Agreement is hereby amended such that the
words "one one-hundredths" shall be replaced with the words "one
one-thousandths" in both locations where such words are used.
30. Section 11(l) of the Rights Agreement is hereby amended such that the
words "one one-hundredths" shall be replaced with the words "one
one-thousandths" in each of two locations.
31. Section 13(a)(i) of the Rights Agreement is hereby amended such that
the words "one one-hundredths" shall be replaced with the words "one
one-thousandths" in each of two locations.
32. Section 14(b) of the Rights Agreement is hereby amended such that the
words "one one-hundredth" in the first sentence shall be replaced
with the words "one one-thousandth" in both locations where such
words are used.
33. Section 14(b) of the Rights Agreement is hereby amended such that the
words "one one-hundredth" in the second sentence shall be replaced
with the words "one one-thousandth" in both locations where such
words are used.
34. Section 14(b) of the Rights Agreement is hereby amended such that the
words "one one-hundredth" in the third sentence shall be replaced
with the words "one one-thousandth" in both locations where such
words are used.
35. Section 17 of the Rights Agreement is hereby amended such that the
words "one one-hundredths" shall be replaced with the words "one
one-thousandths."
36. Section 24(c) of the Rights Agreement is hereby amended such that the
words "one one-hundredth" shall be replaced with the words "one
one-thousandth."
37. The Form of Rights Certificate attached to the Rights Agreement as
Exhibit B is hereby amended such that the words "one-one hundredth"
shall be replaced by the words "one one-thousandth" and the words
"one one-hundredths" shall be replaced by the words "one
one-thousandths."
38. The second sentence of the Summary of Rights to Purchase Preferred
Stock attached to the Rights Agreement as Exhibit C is hereby amended
such that words "one-one hundredth" shall be replaced by the words
"one one-thousandth."
39. Section 23(c) of the Rights Agreement is hereby amended to read in
its entirety as follows:
(c) Notwithstanding the provisions of Section 23(a)
hereof, if, within 180 days of a public announcement by a third
party of an intent or proposal to engage (without the current
and continuing concurrence of the Board) in a transaction
involving an acquisition of or business combination with the
Company or otherwise to become an Acquiring Person, there is an
election of Directors (whether at one or more stockholder
meetings and/or pursuant to written stockholder consent)
resulting in a majority of the Board being comprised of persons
who were not nominated by the Board in office immediately prior
to such election, then for the 180 day period immediately
following the effectiveness of such election (the "Special
Period") the Rights, if otherwise then redeemable absent the
provisions of this paragraph (c), shall be redeemable upon
either of the following conditions being satisfied, but not
otherwise:
(A) by a vote of a majority of the Directors then in
office, provided that
(I) before such vote, the Board of Directors shall
have implemented the Value Enhancement Procedures
(as defined below) and
(II) promptly after such vote, the Company publicly
announces such vote and
(a) the manner in which the Value
Enhancement Procedures were implemented,
(b) any material financial, business,
personal or other benefit or relationship (an
"Interest") which each Company Director and
each Affiliate of such Company Director
(identifying each Director and Affiliate
separately in relation to each such Interest)
has in connection with any suggested,
proposed or pending transaction with or
involving the Company (a "Transaction"), or
with any other party or Affiliate of any
other party to a Transaction, where such
Transaction would or might, or is intended
to, be permitted or facilitated by redemption
of the Rights (an "Affected Transaction"),
other than treatment as a shareholder on a
pro rata basis with other shareholders or
pursuant to compensation arrangements as a
director or employee of the Company or a
subsidiary which have been previously
disclosed by the Company,
(c) the individual vote of each Director on
the motion to redeem the Rights, and
(d) the statement of any Director who voted
for or against the motion to redeem the
Rights and desires to have a statement
included in such announcement,
or
(B) if clause (A) is not applicable, by a vote of a
majority of the Directors then in office, provided that
(I) if there is a challenge to the Directors'
action approving redemption and/or any
related Affected Transaction as a breach of
the fiduciary duty of care or loyalty, the
Directors solely for purposes of determining
the effectiveness of such redemption pursuant
to this clause (B), are able to establish the
entire fairness of such redemption and, if
applicable, such related Affected
Transaction, and
(II) the Company shall have publicly
announced the vote of the Board of Directors
approving such redemption and, if applicable,
such related Affected Transaction, which
announcement shall set forth the information
prescribed by clauses (A) (II) (b), (c) and
(d) above.
"Value Enhancement Procedures" shall mean:
(1) the selection by the Board of Directors of an
independent financial advisor (the "Independent
Advisor") from among financial advisors which have
national standing, have established expertise in
advising on mergers, acquisitions and related
matters and have no Interest relating to an
Affected Transaction, and have not during the
preceding year provided services to, been engaged
by or been a financing source for any other party
to an Affected Transaction or any Affiliate of any
such party or of any Director (other than the
Company and its subsidiaries);
(2) whether or not there is a then-existing
Affected Transaction, the receipt by the Board of
Directors from its Independent Advisor of (a) such
advisor's view (expressed in such form and subject
to such qualifications and limitations as the
Independent Advisor deems appropriate) regarding
whether redemption of the Rights will serve the
best interests of the Company and its shareholders
or (b) such advisor's statement that it is unable
to express such a view, setting forth the reasons
therefor;
(3) if there is a then-existing Affected
Transaction,
(A) the establishment and implementation by
the Board of Directors of a process and
procedures approved by its Independent
Advisor which the Board and such advisor
conclude would be most likely to result in
the best value reasonably available to
shareholders (regardless of whether such
Affected Transaction involves a "sale of
control" or "break-up" of the Company for
Delaware law purposes),
(B) the Board of Directors (I) receiving the
opinion of its Independent Advisor, in
customary form and content for transactions
of the type involved, that the Affected
Transaction is fair to the Company's
shareholders from a financial point of view
and (II) determining, and the Independent
Advisor confirming, that it has no reason to
believe that a superior transaction is
reasonably available for the benefit of the
Company's shareholders, and
(C) the execution of a definitive transaction
agreement and other definitive documentation
necessary to effect the Affected Transaction.
(d) Neither the Company nor any of its Affiliates
or Associates may redeem, acquire or purchase for value any
Rights at any time in any manner other than that specifically
set forth in this Section 23 and other than in connection with
the purchase or repurchase by any of them of Common Stock prior
to the Distribution Date.
40. Section 27 of the Agreement is hereby amended in its entirety to read
as follows:
Section 27. Supplements and Amendments.
(a) Prior to the Distribution Date, and subject to the
provisions of Section 27(b) hereof, the Company and the Rights
Agent shall, if the Company so directs, supplement or amend any
provision of this Agreement without the approval of any holders
of certificates representing shares of Common Stock. From and
after the Distribution Date, and subject to the provisions of
Section 27(b) hereof, the Company and the Rights Agent shall,
if the Company so directs, supplement or amend this Agreement
without the approval of any holders of Rights Certificates in
order (i) to cure any ambiguity, (ii) to correct or supplement
any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) to shorten
or lengthen any time period hereunder, or (iv) to change or
supplement the provisions hereunder in any manner which the
Company may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Rights
Certificates (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person). Upon the delivery of a
certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in
compliance with the terms of this Section 27, the Rights Agent
shall execute such supplement or amendment. Prior to the
Distribution Date, the interests of the holders of Rights shall
be deemed coincident with the interests of the holders of
Common Stock.
(b) Notwithstanding anything herein to the contrary, no
supplement or amendment shall be made to this Agreement during
the Special Period or at a time when the Rights are not
redeemable, except as contemplated by clause (i) or (ii) of
Section 27(a) hereof.
41. The sixth paragraph of the Form of Rights Certificate attached to the
Rights Agreement as Exhibit B, which contains the sentence
The foregoing notwithstanding, the Rights generally may not be
redeemed for one hundred eighty days (180) days following a
change in a majority of the Board as a result of a proxy
contest.
is hereby amended to delete such sentence in its entirety and
insert in its place the following sentence:
The foregoing notwithstanding, the Rights generally may not be
redeemed for one hundred eighty days (180) days following a
change in a majority of the Board as a result of a proxy
contest, unless the Board adopts specified "Value Enhancement
Procedures," or the Board (i) is able to establish the entire
fairness of the decision to redeem the rights if an action
challenging such decision is brought and (ii) satisfies certain
other requirements.
[,with, where required, the concurrence of the Continuing
Directors,]
42. The ninth paragraph of the Summary of Rights to Purchase Preferred
Stock attached to the Rights Agreement as Exhibit C, which contains
the sentence
The foregoing notwithstanding, the Rights generally may not be
redeemed for one hundred eighty days (180) days following a
change in a majority of the Board as a result of a proxy
contest.
is hereby amended to delete such sentence in its entirety and
insert in its place the following sentence:
The foregoing notwithstanding, the Rights generally may not be
redeemed for one hundred eighty days (180) days following a
change in a majority of the Board as a result of a proxy
contest, unless the Board adopts specified "Value Enhancement
Procedures," or the Board (i) is able to establish the entire
fairness of the decision to redeem the rights if an action
challenging such decision is brought and (ii) satisfies certain
other requirements.
43. Exhibit C to the Agreement is hereby amended by deleting the tenth
paragraph therein and replacing it in its entirety with the
following:
For 180 days (the "Special Period") following a change in
control of the Board of Directors of the Company, that has not
been approved by the Board of Directors, occurring within six
months of announcement of an unsolicited third party
acquisition or business combination proposal or of a third
party's intent or proposal otherwise to become an Acquiring
Person, the new directors are entitled to redeem the rights
(assuming the rights would have otherwise been redeemable),
including to facilitate an acquisition or business combination
transaction involving the Company, but only (1) if they have
followed certain prescribed procedures or (2) if such
procedures are not followed, and if their decision regarding
redemption and any acquisition or business combination is
challenged as a breach of fiduciary duty of care or loyalty,
the directors (solely for purposes of the effectiveness of the
redemption decision) are able to establish the entire fairness
of the redemption or transaction.
44. Exhibit C to the Agreement is hereby amended by removing the final
sentence of the eleventh paragraph and replacing it in its entirety
with the following:
The foregoing notwithstanding, no amendment may be
made to the Rights Agreement during the Special Period or at a
time when the Rights are not redeemable, except to cure any
ambiguity or correct or supplement any provision contained in
the Rights Agreement which may be defective or inconsistent
with any other provision therein.
45. The term "Agreement" as used in the Agreement shall be deemed to
refer to the Agreement as heretofore amended and as amended hereby,
and all references to the Agreement shall be deemed to include this
Amendment and all prior Amendments.
46. This Amendment shall be effective as of the date first written above,
and except as set forth herein, the Agreement shall remain in full
force and effect and otherwise shall be unaffected hereby.
47. This Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
ALBERTSON'S, INC.
Attest:
By /s/ KAYE L. O'RIORDAN By /s/ GARY G. MICHAEL
-------------------------- ---------------------------------------
Kaye L. O'Riordan Gary G. Michael
Corporate Secretary Chairman of the Board and
Chief Executive Officer
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Attest:
By /s/ FRANK RICCO By /s/ ASA DREW
-------------------------- ---------------------------------------
Frank Ricco Asa Drew
Assistant Vice President Assistant Vice President
Certificate
of
Officer of
Albertson's, Inc.
The undersigned hereby certifies that Amendment No. 2 to the
Rights Agreement ("the Rights Agreement"), dated December 6, 1996, by and
between Albertson's, Inc. and ChaseMellon Shareholder Services, L.L.C., as
Rights Agent, and previously amended on August 1, 1998, attached hereto is
in compliance with Section 27 of the Rights Agreement and requests that in
accordance with such Section 27 such amendment be executed by the Rights
Agent.
ALBERTSON'S, INC.
By: /s/ GARY G. MICHAEL
-----------------------------
Gary G. Michael
Chairman of the Board and
Chief Executive Officer
EXHIBIT 4
AMENDMENT TO
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF SERIES A JUNIOR
PARTICIPATING STOCK
OF
ALBERTSON'S, INC.
THOMAS R. SALDIN, Executive Vice President and General
Counsel, and KAYE L. O'RIORDAN, Vice President and Corporate Secretary, of
Albertson's, Inc., a Delaware corporation ("Corporation"), do hereby
certify under the seal of the Corporation as follows:
1. That no shares of Series A Junior Participating Preferred Stock,
par value $1.00 per share, have been issued.
2. That, pursuant to the authority conferred upon the Board of
Directors of the Corporation by the Restated Certificate of Incorporation
of the Corporation and in accordance with Section 151(g) of the General
Corporation Law of Delaware, the Board of Directors of the Corporation on
March 1, 1999 adopted the following resolution amending the preferences of
the Series A Junior Participating Preferred Stock:
RESOLVED, that the Certificate of Designation, Preferences and Rights
of Series A Junior Participating Preferred Stock of Albertson's, Inc. (the
"Certificate of Designation") hereby be, and it is, amended as follows:
(a) In section 2(A)(a) and Section 2(B) of the Certificate, the
amount "$25.00" shall be replaced with "$250.00."
(b) In section 2(A)(b) of the Certificate, the words "100 times"
shall be replaced with the words "1,000 times" in both locations where such
words appear.
(c) In the first sentence of Section 6(A) of the Certificate, the
amount "$16,000.00" shall be replaced with "$160,000.00."
(d) In section 6(A)(ii), the amount "100" shall be replaced with
"1,000."
(e) In the first sentence of Section 7, the amount "100" shall be
replaced with "1,000."
In witness whereof, we have signed this Amendment to Certificate
of Designation and caused the corporate seal of the corporation to be
hereunto affixed this 16th day of March, 1999.
/s/ Thomas R. Saldin
----------------------------------
THOMAS R. SALDIN
Executive Vice President and
General Counsel
Attest:
/s/ Kaye L. O'Riordan
----------------------------
KAYE L. O'RIORDAN
Vice President and Corporate
Secretary
